Central Administrative Tribunal - Ernakulam
Dated This The 23Rd Day Of February vs Union Of India Represented By The ... on 23 February, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO.846/2011
Dated this the 23rd day of February, 2012
C O R A M
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER.
HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER
1 Praveen M, S/o C.K.Mani
R/o Kallupurayil, S.V.M Post office
Ayani South, Karunagappally, Kollam-690518
2 Anuraj K.R, S/o Ramarajan Pillai
Kalloor, Manappally South, SRPM P.O
Karunagappally, Kollam Distt., Kerala.
..Applicants.
By Advocate Mr. T.C.Govindaswamy
Vs
1 Union of India represented by the General Manager,
Southern Railway, H.Q Office, Park Tow, Chennai-3
2 The Sr.Divisional Personnel Officer
Southern Railway Palghat Division, Palghat.
3 Railway Recruitment Board, Ministry of Railways,
Thampanoor, Thiruvananthapuram, through its Chairman.
...Respondents
By Advocate Mrs. Sumathi Dandapani Sr.
Advocate Mr.Thomas Mathew Nellimoottil
The Application having been heard on 14.2.2012 the Tribunal delivered
the following:
O R D E R
HON'BLE Mrs. K. NOORJEHAN, ADMINISTRATIVE MEMBER Brief facts of the case as stated by the applicants are that in response to a notification dated 30.1.2010 issued by the respondent No.3 the applicants applied for the post of Assistant Loco Pilots. The minimum qualification prescribed for the post is Matriculation or its equivalent under 10+2 system and course completed Act Apprentices or ITI in any one of the trades mentioned therein or Diploma in Electrical/Mechanical/Electronics/ Automobile Engineering recognised by AICTE in lieu of ITI. The applicants are Diploma holders in Applied Electronics. They were asked to participate in the written examination. On qualifying the examination they were sent for an aptitude test and they were informed that they are provisionally short listed for appointment to the post of Assistant Loco Pilots by letter dated 2.6.2011. By Annx.A8 communication dated 8.8.2011 the applicants were informed of their final selection by respondent No.3. The 2nd respondent issued Annx.A9 appointment letter to the applicants and they were advised to produce the original certificates for verification and undergo the prescribed medical examination. Both the applicants accepted the the offer of appointment and reported before the 2nd respondent. They underwent medical examination and were found fit. They were directed to report on 26.9.2011 to complete the pre-appointment formalities to the post of Assistant Loco Pilot. In obedience to the order of the respondents they reported for joining before the 2nd respondent on 21.9.2011. To theie utter shock and surprise the 2nd respondent did not allow the applicants to join duty and to send them for training. They were told that their qualification of Diploma in Applied Electronics cannot be treated as equal to Diploma in Electronics. However, the respondents have neither recalled the offer of appointment nor given any written order/communication cancelling the same. It is submitted that the Diploma in Applied Electronics is treated as equivalent to Diploma in Electronics by the Govt of Kerala by its GO dated 7.1.1994 and letter dated 22.3.2008 issued by Sr.Joint Director, Directorate of Technical Education, Govt of Kerala. It is averred by the applicants that one Sh.Pratheesh, with Diploma in Applied Electronics was recently appointed as Assistant Loco Pilot in Salem Division. The applicants earlier filed OA 818/2011 challenging the refusal of the respondents to allow them to join duty and to send them for training alongwith others. By order dated 30.09.2011 this Tribunal allowed the OA with the liberty to the respondents to take action in accordance with law after notice to the applicants. Accordingly the applicants were allowed to join duty and participate in the training. On 2.10.2011 the applicants were served with a letter dated 30.9.2011 issued by the 2nd respondent stating inter alia that as per letter No.RRB-TVC-Con.4/ALP dated 22.9.2011, of Chairman, RRB/TVC, the applicants were included in the panel provisionally and they need not be issued with appointment letters as they do not possess the prescribed qualification. In view of the above the appointment order dated 8.8.2011 stands cancelled. The applicants aver that the action of RRB, the 3rd respondent in instructing Resp.2 to cancel their appointment order is illegal and tantamount to colourable exercise of power and willful interference in administration of justice. They have taken up the ground that the RRB which is only a recruitment body becomes functus officio and it is for the appointing authority to decide whether the recommendations of the recruiting body/agent is to be accepted or not. The impugned orders Annx.A12 and A13 are, therefore, without any application of mind and the same are, in fact, under the dictation of an authority lacking in jurisdiction. It is also contended that once an offer has been made and the same is accepted, and also acted upon by issuance of orders of appointment, the said offers become fait accompli and irrevocable. That becomes binding as between the applicants and the respondents and vice versa. The issuance of impugned orders Annxs.A12 and 13 constitutes unilateral action on the part of the 2nd respondent and is arbitrary and unconstitutional. The 1st applicant was a Faculty Member of the National Institute of Fire Engineers at Attingal till recently and he resigned the post to take up the employment in the Railway. Similarly, the 2nd applicant, after having completed his Diploma in Applied Electronics had joined the the B.Tech course by lateral entry and he had also completed the 3rd and 4th semesters. He was to remit his fees for the 5th and 6th semesters (3rd year) amounting to Rs.70000/- when the offer of appointment in Railways as Assistant Loco Pilots was received, the applicant did not remit the fee and thus his studies got discontinued. 2 The respondents filed reply statement opposing the O.A. They submitted that Ministry of Railways issued a Centralised Employment notice dated 30.1.2010, notifying 14079 vacancies of Assistant Loco Pilots (ALPs) to be filled up all over Indian Railways, through 18 RRBs. RRB Trivandrum is one among them. Out of the said vacancies, 128 are notified by RRB Trivandrum for Southern Railway. They submitted that the applicants have applied for the said post quoting their qualification as Diploma in Applied Electronics as against the notified qualification of Diploma in Electronics. The difference in the qualification was lost sight of in the preliminary scrutiny. Therefore the applicants have reached upto the stage of short listing. They further submitted that the candidates while applying for the post should ensure that he/she fulfills all the eligibility norms in the absence of which they are liable to be removed from service even if they are appointed by mistake. It is at the time of document verification the difference in qualification was noticed and the applicants were intimated. At that time they produced Annxs. A4 & A5 certificates from Govt of Kerala showing Diploma in Applied Electronics as equivalent to Diploma in Electronics. Under such circumstances they have come up to the stage of short listing and got provisionally admitted. This aspect was brought to the notice of the applicants by the RRB by Annx.A8 and a clarification was sought from the Executive Director (Estt), Railway Board. Pending clarification the applicants were given offer of appointment as trainee, subject to fulfillment of the conditions stipulated therein. It is averred that after medical examination on 22nd and 23rd Aug.2011, they have not contacted the Divisional Office Palghat. As per the telephonic information received and as per the discussion with Establishment, and Directorate of Railway Board by the 3rd respondent on 16.9.11 it was clear that such equivalency certificate is not acceptable in Railways unless the rules regarding educational qualification is appropriately amended. This was intimated to the applicants telephonically by the Asstt.Secretary, RRB, Trivandrum. The applicants have met the Chairman, RRB, Trivandrum and they were personally appraised. On 25..10.2011 the Joint Director(Estt) of the Railway Board issued a letter confirming that for employment purpose in the Ministry of Railways, only qualification/ equivalency recognised by DoPT which is the nodal Ministry for that purpose are considered. They further averred that Electronics and Applied Electronics are two different disciplines of science and the fixation of electronics as prescribed qualification for ALP is notified through statutory orders. The mechanism of Electric Locomotive is highly sophisticated and the expert in electrical technology and electrical/electronics instruments only can be considered to be eligible for the post. The syllabus for applied electronics does not contain both these areas of technologies. Moreover the educational qualification prescribed for the post is based on various factors required for manning such posts. The prescribed notified qualification cannot be over ruled by the Recruitment Board/Division while making appointment. Annx.A10 and 11 issued to the applicant cannot give an indefeasible right for the applicant to hold the post of ALP without having the prescribed educational qualification. They stated that the statutory rule cannot be violated for accommodating the applicants who were included in the panel provisionally due to error in the process of selection. They relied on the judgment of the Apex Court in the case of P.U.Joshi and Ors. Vs. The Accountant General, Ahmedabad & Ors, AIR 2003 SC 2156, (2002) 2 SCC 632 wherein it was held that the concerned Department has the exclusive discretion and right to lay down terms and conditions of service and the employee has no right to question the same. They also cited the decision of the Apex Court reported in 1993 SCC (L&S) 144, UT of Chandigarh Vs. Dilbagh Singh & Ors, 1992(1) SCJ 7 SC Shanbarsan Dash Vs. UOI. And 2007 (2) SCSLJ 149 Pitta Naveen Kumar & Ors Vs. Raja Narasaiah Zangitti & Ors.
3 The applicants filed rejoinder reiterating the facts as stated in the OA and disputed the contention that Electronics and Applied Electronics are different disciplines of science and those who are expert in electrical technology and electrical/electronics instruments only can be considered for appointment to the post of ALP.
4 The respondents have filed additional reply statement to controvert the contention of the applicant in the rejoinder. They further contended that the prescription of qualification for recruitment to a post in Central Govt is the prerogative of the expert bodies constituted for the purpose and there is no scope for judicial review. They relied on the following judgments of the Apex Court to support their contention. (i) Vincent Panikulangara Vs. UOI, AIR 1987 SC 990, (ii) Liberty Oilmills Vs. UOI, AIR 1984 SC 1271, (iii) Sitaram Sugar Co. Ltd., AIR 1990 SC 1277, (iv) Rail Road Commission of Texas Vs. Rowan and Nocholas Oil Co. 85 Law Ed 358 362, (v) State of Maharastra Vs. Chandralal Anant Kulkarni, AIR 1981 SC 1990 (vi) K. Jagadeesan Vs. UOI, AIR 1990 SC 1072 and (vii) UOI Vs. SC Dutta, AIR 1991 SC 363.
5 We have heard the learned senior counsel Mrs Sumathi Dandapani and Mr.Thomas Mathew Nellimoottil for the respondents and Mr.TCG Swamy for the applicants and carefully gone through the documents produced before us.
6 The main ground raised by the applicants is that the educational qualification of Diploma in Applied Electronics possessed by them is an equivalent qualification to Diploma in Electronics and that the respondents have fixed educational qualification in a variety of trades ranging from Turner, Fitter, to Mill Wright/Maintenance Mechanic, etc for the post of ALP and they fulfill the eligibility conditions prescribed under the rules. 7 The respondents have emphatically stated that the applicants have only been given a provisional offer of appointment stipulating that selection for appointment as trainee ALP is subject to fulfillment of the conditions prescribed therein. Therefore, they cannot have a vested right for appointment to the post of ALP without having the prescribed educational qualification.
8 It is seen from Annx.A1(a) notification that minimum educational qualification for ALP is given as under:
CENTRALIZED EMPLOYMENT NOTICE No. 01/2010 dt of pub 30.01.2010 Minimum Educational Qualification:-
Matriculation OR its equivalent under 10+2 system and Course Completed Act. Apprentice OR I.T.I in any of the following specific trades recognized by SCVT/NCVT:
Exam fee Stages of Exam
(1) Fitter Rs. 40/- (1) Written
(2) Electrician Examination
(3) Instrument Mechanic (2) Aptitude Test
(4) Mill Wright/Maintenance Mechanic (3) Document &
(5) Mechanic Radio & T.V Candidature
(6) Electronics Mechanic Verification
(7) Mechanic Motor Vehicle
(8) Wireman
(9) Tractor Mechanic
(10) Armature & Coil Winder
(11) Mechanic Diesel
(12) Heat Engine
(13) Turner
(14) Machinist
(15) Refrigeration & A.C. Mechanic
OR Diploma in Electrical/Mechanical/Electronics/Automobile Engineering recognized by AICTE in lieu of I.T.I. Note: Candidates having higher Educational qualification in Electrical/Mechanical/Electronics/Automobile Engineering recognized by AICTE are also eligible.
Taking into account the Diploma qualification of applicants in Applied Electronics they were permitted to take the written test, viva voce and selected by the 3rd respondent, viz., RRB, Trivandrum. The respondents did not point out that the applicant were not included in the select panel based on Annexure A-4 certificate of equivalency by the Government of Kerala. Annexure A-4 is extracted below:-
GOVERNMENT OF KERALA Higher Education (L) Department G.O. (MS) No. 5/94/H.Edn. Dated Thiruvananthapuram 07.01.1994 Ref:- 1. Letter No. D/2337/90/HRD dated 03.34.91 from the Director, Institute of Human Resources Development for Electronics
2. Letter No. C6/10693/91 dated 27.07.93 from the Director of Technical Education
3. Letter No. V(1)/16766/92/G dated 8.12.93 from the Secretary, Kerala Public Service Commission.
ORDER The Director, Institute of Human Resources Development for Electronics in his letter read as first requested Government that the courses conducted in Model Polytechnic, Vadakara may be declared equivalent to the corresponding courses conducted in regular Polytechnics. The Director of Technical Education was consulted in the matter and the report of the expert committee was forwarded to the Kerala Public Service Commission for their views.
2 The Kerala Public Service Commission in their letter read above has agreed to the proposal and recruitment order that the courses conducted in Model Polytechnic, Vadakara will be declared equivalent to corresponding courses conducted in regular Polytechnics as shown below:-
Course in Model Polytechnic Courses in Regular Polytechnic Applied Electronics Electronics/Power Electronics Medical Instrumentation Electronics/Instrument Technology Computer Hardware Maintenance Electronics/Computer Engineering By Order of the Governer, C.J. MARY JOINT SECRETARY 9 The Institute of Human Resources Development, an autonomous educational institution established by the Government of Kerala, in 1987 manages 93 educational institutions including 9 Engineering Colleges, 8 Polytechnic Colleges, 39 College of Applied Science. The Applied Science Colleges are affiliated to the different Universities and examination conducted and degrees awarded by the respective Universities. In Polytechnic Colleges, the Diploma is awarded by the State Board of Technical Education, Government of Kerala. Once the respondent Railway authorities take a decision, that the order of equivalency of Applied Electronics to Electronics and Power Electronics granted by Higher Education Department of Government of Kerala is not acceptable it strikes a deadly blow, to the thousands of aspirants, possessing such Diploma, for any job in Central Government. It is especially so in the State of Kerala where the percentage of un-employment is high resulting in the youth migrating to greener pastures abroad, leaving their families back. The Government of Kerala, has taken such a decision as early as in 1994 based on the report of the expert committee and in consultation with the Director of Technical Education. In this age of very high level of specialization, more and more subjects are being introduced, with the thrust on practical applicability as opposed to rote learning in pure sciences. When the applicants were not sent for the training, they filed 818/11 before this Tribunal and obtained an interim order in their favour directing the respondents to send them for training. This was taken up on appeal before the Hon'ble High Court of Kerala, OP CAT 3438/11. The Hon'ble High Court up-hold the interim relief granted by the Tribunal. The operative part is as under:
"In our view, Applied Science has more relevance for technical work and Pure Science has more theoretical value. So much so, we are afraid whether the respondents are more qualified than the normal electronic diploma holders as respondents have studied Applied Electronic. In any case, we see no reason to interfere with the Tribunal's order directing the petitioners to give training to the respondents pending final decision by the Tribunal. We leave it open to the petitioner to compare the syllabus and establish before the Tribunal that the Applied Electronics is not curriculum basis equivalent to Diploma in Electronics and if so established, the Tribunal can reject the Original Application or otherwise they will sustain the interim order making it part of the final order."
10 Annx.A1 employment notice of the 3rd respondents shows that for the post of ALP those possessing a certificate in 15 different trades recognised by SCVT/NCVT, fulfill the minimum educational qualification alongwith those having Diploma in Electrical/Mechanical/Electronics/ Automobile Engineering recognised by AICTE in lieu of ITI, therefore candidates who have completed the Certificate Course or Diploma in 15 Trades and 4 subjects fulfill the minimum educational qualification for taking up the written examination for ALP. The Hon'ble High Court of Kerala observed in its judgment that the respondents should make available the Syllabus for Diploma in Applied Electronics and Electronics before this Tribunal to get an idea about the subjects prescribed in both the courses. This has been duly produced by the respondents and perused during the course of hearing. It is seen that the subjects are same for 1st and 2nd semesters and for the remaining 6 semesters most of the subjects are similar. The only exemption is with respect to the subject of Electrical Technology which is one of the papers prescribed for Diploma in Electronics in the 3rd semester and it is not one of the subjects for Diploma in Applied Electronics. Otherwise all the subjects covered in Electronics are also found to be covered in different semesters in the curriculum of Applied Electronics with a few extra papers. Applicants with Diploma in Applied Electronics stand on the same footing as Diploma holders in Electronics in view of the curriculum prescribed for the former. When those possessing trade certificates in Mechanic, in Radio & TV, Wireman do meet the educational qualification, a Diploma in Electronics or Applied Electronics should not a difference. Ultimately whatever theoretical knowledge they possess has to be translated into practical knowledge during the specialised induction training which is imparted to every one coming with Certificates in 15 Trades and Diploma in Electronics/Mechanical/Electrical/Automobile Engineering. When the course curriculum prescribed for Diploma in various subjects by the Directorate of Technical Education, Kerala is accepted, there is no reason why Annx.A4 certificate of equivalence granted by the Govt of Kerala in consultation with Directorate of Technical Education is not accepted by the respondents. In our considered opinion it is not legally sustainable.
11 During hearing it is averred by the respondents that out of 14079 notified vacancies for ALP, 128 are earmarked for RRB Trivandrum. While about 35000 candidates took part in the examination, only about 2000 qualified in the written examination. Since the number of candidates called for viva voce is restricted to 5 times of the number of vacancies, 640 candidates were called for viva voce. It is stated that only 81 candidates qualified in viva voce against 128 vacancies notified. It shows clearly that there is dearth of candidates with the required calibre and skills etc. and the two applicants could come through successful in the written examination and viva voce. A perusal of the Syllabus, for Electronics and Applied Electronics shows that the difference in the two subjects, is one of nomenclature and the difference, if any, is marginal. Keeping in view the observation of the Hon'ble High Court of Kerala that 'Applied Science has more relevance for technical work and pure science has more theoretical value' coupled with the fact that the syllabus for the papers prescribed for all the semesters almost match, in our considered opinion, the applicants possess the required educational qualification for the post of ALP. 12 In view of the foregoing, the OA succeeds. Impugned orders Annxs.A12 and A13 are quashed and set aside. The respondents are directed to issue appointment letters expeditiously at any rate not later than six weeks and ensure completion of training of the applicants alongwith other selected candidates, as permitted by the Tribunal in its interim order dated 30.9.2011 in OA No.818/2011, which is made absolute. No costs.
Dated 23rd February, 2012
K. NOORJEHAN Dr.K.B.S.RAJAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER.
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